How Will Marijuana Reform Affect Drug-Testing Policies At The Workplace?
Marijuana legalization continues to be a burning issue, with everyone having increasingly high hopes for what will happen on November 8 in California. But if things go the way we want and marijuana is legalized, employers will face a tough time if they ask applicants or a subordinate to undergo a drug test. While that is a standard operating procedure in many companies until now, if marijuana is legalized it could be perceived as a violation of privacy. Job applicants also face a dilemma: if they choose not to undergo the drug testing they face losing the job, but if they agree they can be discriminated by being labeled a pothead.
These situations aren’t too far out from happening in the near future. Legal experts as well as employers around the country have to confront these issues. Some experts think that businesses in California will need to make up their minds about many things surrounding drug testing, or if they even need to do it at all.
What employees all over California need to know is this: even if pot becomes legal by year end, that doesn’t mean that drug use will be tolerated in the workplace. Employers are protected by the California Supreme Court. Just think about alcohol use: while it’s legal, you will likely get fired if you are caught drunk on the job. The reason why drug testing is there in the first place is because employers are worried about their people using substances before going to work.
According to federal law, industries that are sensitive to safety such as aviation and transportation, are required to conduct drug testing. But for other industries there are minimal limits and they leave it to the discretion of companies and state laws to make a decision. According to NOLO, a free website providing legal information: “California is one of the few states with a constitution that includes a right to privacy for public and private employees. California court cases have found that employers may require employees to pass a drug test as a condition of employment. The employer must test all applicants for particular job positions and may not single out applicants based on protected characteristics such as race or disability.”
Despite this, when it comes to cannabis legalization and the complex world of employment issues, marijuana use is still a hazy issue. The compassionate law exists in California - this means that residents of the state can use the herb to treat certain illnesses. But according to the state’s Supreme Court, employees can choose NOT to hire an applicant should they test positive for the drug despite the fact that it is being used as a medicine. Because of this, businesses are at risk of facing lawsuits for disability discrimination.
Small mom-and-pop type of businesses however do enjoy the flexibility of changing their policies as they please. This is especially true for businesses that are based in only one location or that operates within a single state only. It’s international and national companies that are more vulnerable to the complexity of these laws especially when it comes to changing policies. At the end of the day, marijuana is still illegal under federal law, and you’ll be hard-pressed to find a large multinational corporation that’s willing to risk their profit and reputation by facing legal repercussions in order for their employees to partake of medical marijuana. This means that even if you live in a state where marijuana is legal, there are still other factors that come into play, such as the size of the company that employs you.
But before you pack up your bags and head to Colorado, there isn’t that much of a difference there. Amendment 64, or the provision legalizing cannabis, states: “Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.” In Washington DC, Initiative 71 which legalizes one to own marijuana, says that employees can still get fired for using the herb even if it’s outside the workplace.
In a recent New York Times article, drug testing has proven to be a hindrance for companies that need to hire people to operate heavy machinery. Specific companies were even named in the article that mentioned the challenges they face such as drivers who just don’t show up for drug tests.
Legally, it is somewhat understandable. Employers can choose from a myriad of reasons when they decide to terminate an employee even if they do background checks prior to hiring. What’s frustrating about it is that no one checks or says anything if you’ve been caught drinking or smoking cigarettes during your free time but smoking marijuana in itself is a ground to get fired. Until policies actually change, the employment situation is up in smoke. It will all depend on how much risk an applicant is willing to take when finding a new job.
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